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Criminal Bail Application No. 583 of 1986, decided on 22nd September 1986.

‑‑‑S. 498‑‑Penal Code (XLV of 1860), Ss. 323, 325 & 504‑‑Pre‑arrest bail, grant of‑‑Distinction between pre‑arrest and after arrest bail‑‑ No reference of mala fides in bail application before Sessions Judge‑ Ulterior motive causing irreparable injury to reputation and liberty, not alleged‑‑Accused having motive to pressurise complainant to desist from executing sale‑deed of land‑‑Pre‑requisites for grant of anticipatory bail, held, not available for allowing bail in circumstances.

Murad Khan's case P L D 1983 S C 82 ref.

Ahmad Khan Barakzai for Applicant.

Syed Sarfraz Ahmad, A.A.‑ G. for the State.

This is an application for bail before arrest. The applicant apprehends his arrest by the police in connection with an offence under sections 325, 323 and 504, P.P.C. being Crime No. 44 of 1986. Complainant, Allah Bux Solangi, as per F.I.R. states that he cultivates the lands of Mst. Shah Khatoon in Deh Purano Dero' as Hari. At about 10‑00 a.m. on the day of incident (4‑6‑1986) the complainant got his turn of water from the applicant. At 12‑30 noon, while he and his mother Mst. Jamal Khatoon were standing on the water course, the applicant alongwith Soomar, Mitho and Chibhar came there. Soomar and Mitho were armed with hatchet while applicant and Chibhar with Lathies. They started abusing him (Complainant) as to why he had diverted water to his land. The applicant and Chibhar caused Lathi injuries to Mst. Jamal Khatoon and Mitho caused hatchet injuries to him (Complainant). On cries, Noorul, Miral and others came to the spot, and then all the accused ran away.

2. The application for bail before arrest was moved by the applicant in the Sessions Court, Dadu which was dismissed by the learned I/C Sessions Judge, Dadu by his order, dated 16‑7‑1986 wherein it was observed that:‑‑

"I have gone through the police papers and the Medical Certificates issued by the Doctor. Mst. Jamal Khatoon has received 4 injuries caused by hard and blunt weapon. Out of them injury No. 1 on her right arm has been declared grievous as she has got fracture. As per F.I.R. this injury has been caused by the present applicant Laskhari. In view of this fact I am of the firm opinion that since the name of the accused appears in the F.I.R. and specific role has been attributed, therefore, he is not entitled for bail before arrest:"

3. Being aggrieved of the said order, the applicant has now filed this application for bail before arrest on 21‑9‑1986. Mr. Ahmad Khan Barakzai, learned counsel for the applicant submits that the offence at the most falls under section 325, P.P.C. which is not punishable with death or imprisonment for more than 10 years and the challan of the case having been submitted in the Court, the applicant is no more required for any investigation. He further submits that the incident is 1 the result of a sudden fight over a dispute about rotation of water and sale of the land of Mst. Shah Khatoon regarding which agreement of sale has been executed in favour of the complainant, in spite of the applicant's protest. Then applicant has been involved mala fide in the case, which is false.

4. I am afraid, the submissions made by the learned counsel do not makes out a case for bail before arrest. A distinction has always been recognised by the superior Courts as to the facts and circumstances justifying bail before arrest and bail after arrest. As observed in Murad Khan's case P 1_, D 1983 S C 82, to satisfy conditions for grant of pre‑arrest bail it must be shown that the arrest is intended for ulterior motives so as to cause irreparable injury to reputation and liberty, due to motivation of police or the party.

5. It is noteworthy that there is no reference as to mala fides in the bail application moved before the learned Sessions Judge. On the other hand, the motive can be attributed to the applicant who, perhaps, wanted to pressurise the complainant to desist from execution of sale‑deed in respect of land, for which there already exists an agreement for sale between the complainant and Mst. Shah Bano.

6. I am, therefore, not satisfied that the pre‑requisites for grant of bail before arrest are available in this case. There seems to be no justification for allowing pre‑arrest bail to the applicant. The application as such is rejected.

7. Let me make it clear that the observations made hereinabove will not have any bearing on bail after arrest or the trial.

S.A./L‑2/K Anticipatory bail refused.

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